STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, )

PINELLAS COUNTY SHERIFF, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0022

)

MARY C. STYERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on March 20, 1996, in Largo, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. Craig, Esquire

ALLEY AND ALLEY/FORD AND HARRISON

205 Brush Street Post Office Box 1427

Tampa, Florida 33601

For Respondent: Joseph M. Ciarciaglino, Esquire

CIARCIAGLINO AND COYLE, P.A.

200 Mirror Lake Drive

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By memorandum on June 12, 1995, Petitioner, Everett S. Rice, Sheriff of Pinellas County (Petitioner), notified Respondent, Mary Styers, that her employment as a property clerk with the Pinellas County Sheriff's Office was terminated. The memorandum alleged in four counts that Respondent was guilty of violating rules and regulations of the Pinellas County Sheriff's Office. The rules she allegedly violated relate to truthfulness, conduct unbecoming a public servant, and inadequate job performance. It is further alleged that these actions violate the Pinellas County Sheriff's Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-385, Section 6, Laws of Florida.

Respondent denied the allegations and timely requested a formal hearing. On January 2, 1996, the matter was referred to the Division of Administrative Hearings for a formal proceeding.

At the hearing, Petitioner presented the testimony of five witnesses and had six exhibits entered into evidence. Respondent testified on her own behalf and presented the testimony of seven witnesses. Respondent had nine exhibits entered into evidence.

A transcript of the formal proceeding was not requested by either party. By agreement of the parties, at the conclusion of the hearing, the time period for filing proposed recommended orders was more than ten days after the final hearing, thereby waiving the time constraint imposed by Rule 28-5.402, Florida Administrative Code. See Rule 60Q-2.031(2), Florida Administrative Code.

Petitioner requested and was granted an extension beyond the time originally set for post-hearing submissions. The parties timely filed their proposed recommended orders under the extended time frame.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 96-0022.

FINDINGS OF FACT

1. Respondent has been employed by the Pinellas County Sheriff's Office for approximately nine years. For the past four years and at all times material to this proceeding, Respondent was employed by the Pinellas County Sheriff's Office as a property clerk.

   
   

2. Respondent's duties as a property clerk included the following: (1) taking physical custody of evidence, (2) assigning physical locations in alpha- numerically numbered "bins"; (3) recording the receipt of evidence and its physical location in the computer; (4) printing and affixing to the evidence, bar codes for identification of the evidence; and (5) placing the items in the appropriate bins. Also, in her role as a property clerk, Respondent was responsible for retrieving evidence from the bins for officials of the Sheriff's Office when such evidence or property was needed for court, analysis, or other purposes.

   
   

3. In collecting and logging in items, property clerks follow a specified routine. Each item of evidence has a unique police report number for tracking purposes in the Sheriff's Office computers.

   
   

4. Typically, the Property Section will receive an item of evidence from a law enforcement officer with identifying information contained on an adhesive "property and evidence" label. The label includes the police report number, date and place of collection, the officer's name and payroll number, and any special instructions. The collecting officer and the property clerk sign the label when the item of evidence is received by the property clerk.

   
   

5. After the property clerk receives the item, the property clerk enters the information into the computer and assigns the item a physical location in the Section. Once the information is entered into the computer, the property clerk will command the computer to print a small adhesive paper label which contains a bar code, location number, and brief item description. The property clerk then affixes the label to the bag containing the item.

   
   

6. Except for guns, drugs, and oversized materials, once items are processed, they are stored in cardboard boxes (or bins) in the Property Section's warehouse. The warehouse is located behind a secure door and contains

   items of property or evidence. The boxes are arranged alpha-numerically. For example, there is a rack in the warehouse containing the "Y" boxes, from Y-001- upwards. The boxes are filled sequentially.

   
   

7. The property clerks process the items at a computer terminal located behind the glass partition separating the secure areas of the Property Section from the common lobby area. Typically, there are four boxes of different sizes on the table. Usually, the property clerks place evidence boxes on a table located directly behind them. Once an item of evidence is processed, it is placed in one of the four boxes on the table. The placement of items of evidence in one of these four boxes alleviates the need for the property clerk to shuttle each individually processed item of evidence to the warehouse. Once an evidence box is full, the property clerk takes the box to the warehouse and places it in the appropriate rack. Then the property clerk removes the next consecutively numbered empty box and takes it to the table in the processing area.

   
   

8. On or about April 10, 1995, Sgt. Wallace Colcord, Section Commander of the Property and Evidence Section, Pinellas County Sheriff's Office, was notified by the supervisor of the midnight shift, Robert Bayer, of inquiries regarding missing pieces of property. Essentially, in looking for an item of evidence, a property clerk had failed to locate an item of evidence for a forensic technician. In this instance, the computer indicated that the item was located in a certain bin in the warehouse, but upon a search of the designated bin, the property could not be located.

   
   

9. Based upon his investigation, Supervisor Bayer determined that the original bar codes indicated that the evidence had been initially processed by Property Clerk Betty Chandler. Bayer spoke with Chandler regarding the missing item and directed her to locate the property. After spending the entire weekend looking for the missing item of evidence, Chandler located the initial missing item as well as several others that had been relocated. What Chandler discovered were items that were mislocated and had new bar codes affixed over the original bar codes prepared by Chandler. However, it was determined that the computer entry for the items showed the original location. During the course of this investigation, it was discovered that seven items of evidence had been mislocated in this manner.

   
   

10. The bar code printing machine maintains a continuous ribbon which was able to be examined. Through such examination, it was determined that the new bar codes on the mislocated items had been printed on the evening shift of April 1, 1995, during the time that only Respondent was on duty.

    
    

11. On or about April 24, Sgt. Colcord and Richard Roberts, Respondent's immediate supervisor, met with Respondent Styers regarding the mislocation of items that occurred during her shift on April 1, 1995. Respondent initially indicated that she had heard something about the problem. Sgt. Colcord presented to Respondent two items of property which had been mislocated, two inmate knives. He then directed Respondent to inspect the items, the labels and the bar codes and asked her if she had anything to do with those items. Respondent denied knowing about or having anything to do with the items.

    
    

12. After being told that it had been determined that the bar code ribbons indicated that she had printed the "new bar codes" for the two inmate knives, Respondent changed her story. Respondent stated that she had been working on a relocation to an "L" box in the presence of her husband and eight-year old daughter, who had come to the office to have dinner with her. She indicated

    that her daughter must have used the computer and mislocated the property while she and her husband were outside smoking.

    
    

13. Sgt. Colcord then asked Respondent whether he could call her husband regarding his recollection of the events of April 1, 1995. Within a short time, Sgt. Colcord spoke to Respondent's husband by telephone regarding his recollection of the events. In this conversation, Mr. Styers did not recall that he and Respondent ever left their daughter in the Property Section Office alone. Also, Mr. Styers indicated that he did not believe that, without supervision, his daughter had the computer skills necessary to make the entries required to relocate property or evidence.

    
    

14. After the telephone discussion with Mr. Styers, Sgt. Colcord and Roberts resumed their interview with Respondent. After learning that her husband's version of the events conflicted with hers, Respondent changed her story. Respondent then indicated that she had not left her daughter alone in the secure area of the Property Section. Respondent indicated that her daughter was interested in the "stickers" and based on her daughter's interest, Respondent showed her daughter how locations were done. According to Respondent, in demonstrating to her daughter how the labels were printed, Respondent took several items of property that were laying out on the counter and, in the computer, changed the location of the items, printed out the new labels showing the new location, and affixed these labels to the items of property. According to Respondent, she then went back to the computer and returned each item to its original location, but forgot to print corresponding stickers and "inadvertently" took these items and placed them in the bins as indicated on the stickers. Respondent Styers acknowledged making these mistakes, but indicated that the errors were accidental or inadvertent.

    
    

15. Most of the items of evidence mislocated by Respondent had been originally processed by Property Clerk Chandler. At the time of the incident, both Chandler and Respondent were eligible for a promotion to a position soon to be vacated by the retirement of Supervisor Bayer. By creating the appearance of mistakes on the part of Chandler with regard to the handling of evidence, Chandler's promotional opportunities would be negatively impacted.

    
    

16. Based on his conclusion that Respondent had been untruthful during the investigation and on her actions of mislocating property, Sgt. Colcord referred the matter to the Administrative Inquiry Division (AID) of the Sheriff's Office.

    
    

17. During this investigation, Respondent was interviewed by agents of the Internal Affairs Section of the Pinellas County Sheriff's Office. At that time, Respondent told investigators that on the evening of April 1, 1995, she was demonstrating to her daughter how items were relocated both physically and through bar code changes in the computer. According to Respondent, she thought that she had returned the items used in the demonstration to their appropriate computer locations and had properly bar coded the items. During these interviews, Respondent again admitted that she was responsible for the errors but stated that the errors were simply mistakes and were not made intentionally.

    
    

18. After completing its investigation, the AID presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and sustained the complaint. Specifically, Styers was charged with violations of four rules of the Pinellas County Sheriff's Office. The charges involve allegations that Respondent violated the following rules and regulations of the Pinellas County Sheriff's Office: (1) C-1,V.A,6,(006), relating to truthfulness; (2) C-1,V,A,14c.,(016),

    relating to conduct unbecoming a member of the agency; (3) C-1,V,C,5,(064), relating to performance of duty; and (4) C-1,V,C,19,(082), relating to the care, custody, and control of property and evidence.

    
    

19. Pursuant to General Order B-15, violation of the rules cited above relating to truthfulness and conduct unbecoming a member of the agency are considered Level Five violations. Violations under the rules related to performance of duty and the care, custody, and control of evidence and property are considered Level Three violations.

    
    

20. Under the Pinellas County Sheriff's Office Guidelines (Guidelines), a sustained finding of two Level Five violations is the basis for assigning sixty disciplinary points. A sustained violation of two Level Three violations is the basis for assigning twenty-five disciplinary points. The Sheriff's Office General Order B-15 does not contain a disciplinary range for a total point award of eighty-five points. However, consistent with the established Guidelines, the Chain-of-Command Board adjusted Respondent's total disciplinary point award at seventy-five points. For seventy-five (75) total points, the discipline imposed may range from ten days suspension to termination.

    
    

21. Based on its findings, the Chain-of-Command Board recommended that Respondent be terminated. Petitioner concurred with the recommendation of the Chain-of-Command Board and terminated Respondent from her position as property clerk with the Pinellas County Sheriff's Office.

    
    

22. Prior to the incident in this case, Respondent has not been the subject of an administrative investigation or any disciplinary action by the Pinellas County Sheriff's Office.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes, and Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida.

    
    

24. Respondent Styers, as a classified employee and property clerk with of the Pinellas County Sheriff's Office, is charged with the responsibility of complying with all applicable state laws and regulations, and operating procedures of that office.

    
    

25. Chapter 89-404, Section 6, Laws of Florida, authorizes the Sheriff to suspend, dismiss, or demote classified employees for offenses enumerated therein. That section provides in pertinent part the following:

    
    

    1. Cause for suspension, dismissal or demotion shall include, but not be limited to: negligence, inefficiency, or [inadequate job performance]; inability to perform the assigned duties, incompetence, [dishonesty], insubordination, [violation of the provisions of law or the rules, regulations, and operating procedures of the Office of the Sheriff, conduct unbecoming to a public servant], misconduct, or proof and/or admission of use of illegal drugs.... [Emphasis Supplied]

    2. The listing of causes for suspension, demotion, or dismissal in this section is not intended to be exclusive. The Sheriff may, by departmental rule, add to this list of causes for suspension, dismissal or demotion.

       
       

26. Chapter 89-404, Section 2, Laws of Florida, authorizes the Sheriff to adopt rules and regulations as are necessary to implement and administer this section. Pursuant to this authority, Petitioner has adopted policies which establish a standard of conduct which must be followed by all employees of the Pinellas County Sheriff's Office.

    
    

27. In the termination notice, Petitioner charges Respondent in four counts with violations of Pinellas County Sheriff's Office Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Laws of Florida. Count I alleges that Respondent violated the Pinellas County Sheriff's Office rule relating to truthfulness; Count II alleges that Respondent is guilty of conduct unbecoming a public servant or member of the agency by making or causing to be made a false entry in official records; Count III alleges that Respondent is guilty of inadequate job performance as it relates to the care, custody, and control of property and evidence; and Count IV alleges that Respondent is guilty of inadequate job performance as it relates to performance of duty.

    
    

28. Respondent is charged with violating the following rules under General Order B-15:

    
    

    (a) Rule C-1,V,A,6,(006)

    (Level 5 violation): Truthfulness - Members are required to be truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations.

    1. Rule C-1,V,A,14c.,(016) (Level 5 violation): Conduct Unbecoming Members of the Agency - Knowingly making a false entry or caus[ing] a false entry to be made in any official record of the Agency.

    2. Rule C-1,V,C,5,(064) (Level 3 violation): Performance of Duties - All personnel shall perform their duties as required or directed by law, agency rules, policies and procedures, or other lawful duties required by competent authority shall be performed promptly as directed, not withstanding [sic] the general assignment of duties and responsibilities.

    3. Rule C-1,V,C,19,(082) (Level 3 violation): Care, custody, and Control of Property/Evidence - Members charged with receiving, storing, and releasing property and evidence are required to handle such items in accordance with established procedures.

    
    

29. The burden is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Therefore, in order to prevail in this proceeding, Petitioner is required to prove the charges against the Respondent by a preponderance of the evidence.

30. Count I alleges that Respondent violated Rule C-1,V,A,6,(006), which requires that members of the Classified Service to be "truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations." The evidence shows that when interviewed by her superiors regarding the mislocation of evidence and property, Respondent told several conflicting and inconsistent versions of the events that occurred on April 1, 1995. This evidence was undisputed.

    
    

31. Respondent appears to argue that this provision is limited in scope and applies only to legal proceedings and formal administrative investigations. However, the argument is unpersuasive in that such a narrow interpretation would lead to an illogical result. By adopting such a narrow interpretation of the rule, classified members would be under no obligation to be truthful in communications about work-related activities unless such communications were in the context of legal proceedings or formal investigations. For the reasons stated herein and in the preceding paragraph, Petitioner has sustained his burden with regard to Count I.

    
    

32. Count II alleges that Respondent knowingly and intentionally altered evidence and property records by making inaccurate computer entries and manufacturing incorrect bar code labels in violation of Sheriff's Rule C- 1,V,A,14c.,(016). Respondent acknowledged that she relocated evidence in the computer and printed and affixed bar code labels showing the new location of the items. Further, Respondent admitted that after affixing these labels, she made computer entries, which showed that the items were in their original locations instead of the location printed on the new bar code. Also, the evidence demonstrated that Respondent committed these acts. Therefore, Petitioner has sustained his burden in regard to the Count II of the charging document.

    
    

33. Count III alleges that Respondent violated Sheriff's Rule C- 1,V,C,19,(082), by failing to properly record, document and store certain items of property and evidence in accordance with established procedures. Petitioner has shown through the evidence that Respondent failed to properly record, document, and store property and evidence. Further, Respondent has admitted such failure and acknowledged in her proposed findings of fact that this failure constitutes a violation this rule. In light of the record evidence and Respondent's admission, Petitioner has proven that Respondent committed the offenses alleged in Count III.

    
    

34. Count IV alleges that Respondent failed to perform her duties as required by law, agency rules, and policies and procedures in violation of Sheriff's Rule C-1,V,C,5,(064). This charge is based on Respondent's admission that she permitted her daughter to access and operate a secure computer terminal. That she committed this offense is undisputed and has been admitted by Respondent. Therefore, Petitioner has sustained its burden in regard to Count IV of the charging document.

    
    

35. The rules and regulations of the Pinellas County Sheriff's Office are divided into five categories ranging from Level One to Level Five, "with violations of Level Five, comprising the most serious discipline." Pinellas County Sheriff's Office Policy, C-1, III. Given the prescribed point totals, termination is within the prescribed disciplinary range for the offenses committed by Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent guilty of the conduct alleged in Counts I, II, III, and IV of the charging document and upholding Respondent's termination from employment as a property clerk with the Pinellas County Sheriff's Office.

DONE and ENTERED this 10th day of July, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0022

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1.-4. Accepted.

1. Accepted and incorporated.

2. Accepted.

7.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

13. Accepted.

14.-34. Accepted and incorporated to the extent not subordinate or unnecessary.

35. First sentence accepted and incorporated. Remainder of paragraph rejected as argument.

36.-41. Accepted and incorporated to the extent not subordinate or unnecessary.

Respondent's Proposed Findings of Fact.

1. Accepted.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted.

4.-6. Accepted and incorporated.

7. Accepted in part. Reject characterization of interview as "informal discussion" and statement that Respondent was not informed of the nature of the mislocation of items.

8.-9. Accepted and incorporated to extent not subordinate or unnecessary

1. Accepted and incorporated to extent not subordinate or unnecessary. Reject characterization of discussion as "informal interview."

2. Accepted and incorporated.

3. Accepted except phrase "no evidence of such was presented" is rejected as not supported by the record.

4. First sentence accepted and incorporated. Remainder of paragraph rejected as argument and/or legal conclusions.

5. Accepted.

6. First two sentences accepted. Remainder of paragraph rejected as argument and/or legal conclusions.

7. Accepted and incorporated.

8. Rejected as argument and conclusions of law.

9. First two sentences and last sentence accepted. Remainder of paragraph rejected as argument.

10. Accepted and incorporated to extent not subordinate or unnecessary. 20.-23. Rejected as irrelevant and immaterial.

24. Accepted.

COPIES FURNISHED:

James M. Craig, Esquire

ALLEY AND ALLEY/FORD AND HARRISON

205 Brush Street Post Office Box 1427

Tampa, Florida 33601

Joseph M. Ciarciaglino, Esquire CIARCIAGLINO AND COYLE, P.A.

200 Mirror Lake Drive

St. Petersburg, Florida 33701

William Repper, Chairperson Pinellas County Sheriff's

Civil Service Board Post Office Box 539 Clearwater, Florida 34617

B. Norris Rickey, Esquire

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-000022

Orders for Case No: 96-000022